Why One Expert Says Edward Snowden Deserves Clemency

Edward Snowden is, of course, facing some serious criminal charges here in the United States for stealing classified documents and leaking details of domestic and international surveillance programs. It's unclear if Snowden will ever return to this country to face charges, but that hasn't stopped a vigorous debate in recent days over whether Snowden should be eligible for clemency.

We're going to hear two voices in that debate beginning today with Jennifer Granick. She's the director of civil liberties at the Stanford Center for Internet and Society. Jennifer, thanks for coming on the program. We appreciate the program.

JENNIFER GRANICK: Thank you.

GREENE: So make the case for me, if you can, that Edward Snowden deserves some kind of clemency.

GRANICK: Well, we would not know what our government is doing, we would not know the extent to which they spy on us, were it not for Edward Snowden. There were whistleblowers before him about the NSA, but the documents that Snowden took proved the truth of what those whistleblowers and what Edward Snowden was saying. And only because we have those documents, our government has had to come clean about its practices.

GREENE: Well, let me ask you about what he uncovered. You say that he uncovered the extent to which our government is spying. It seems that to this point he has not uncovered that the government is doing anything illegal. Is that fair to say?

GRANICK: No, I don't think that is a fair characterization. Courts have called what the government's done unconstitutional. And, you know, the very people who passed the law that the government uses to justify that bulk collection have said that wasn't what they wanted the Patriot Act to say. So if Congress passes laws and the NSA interprets them in ways that are completely contrary to Congress's intent, that is not lawful - that's not lawful collection.

GREENE: Let me ask you about a column that appeared in Slate magazine, from Fred Kaplan. He suggested that, sure, Edward Snowden revealed, you know, some activities by the NSA spying on American citizens. But he asks why Edward Snowden had to keep going from there and reveal a lot of activities abroad that in theory could be very dangerous to this country when they're revealed. As he put it: An operation to gauge the loyalties of CIA recruits in Pakistan, radio transmissions of Taliban fighters in Pakistan's Northwest Territories.

Why did Edward Snowden have to go further than looking at domestic surveillance?

GRANICK: You know, I think the idea that we should only be worried domestic spying on Americans that clearly breaks the law is very narrow. This is not an area where there is a lot of law because the law is secret and the interpretation of the law is secret. What we've learned is that our government is doing things worldwide that definitely directly affect our privacy as Americans but affect the privacy of other people globally as well, that affect whether the network is secure, that affect our relationships with allies. And these are important things that go well beyond the question of is there just mass spying here at home.

We've learned so much more than that that's disturbing. And we have Edward Snowden to thank for that.

GREENE: Are there cases though where a government like the U.S. government needs to be able to legally keep its practices secret?

GRANICK: I do think that secrecy is appropriate in the practice of intelligence. But what we are doing now is we are totally over-classifying and keeping things secret that absolutely should not be secret. I don't see and I haven't heard any good case made that any of things that we've learned as a result of the documents from Edward Snowden have harmed national security. And if you look at the statements of officials, they've haven't identified anything either. They say, well, there might be harm, maybe there will be harm.

To me the things that clearly should be secret are: Who are the suspected terrorists that we are trailing? That is the purpose of the top-secret FISA court, to approve those secret targets. But what should not be secret are extra-legal - meaning where there is no law to authorize it, but it's something that intelligence agencies have decided to do - that shouldn't be secret. Congress needs to review that. There needs to be public understanding.

And that's the only way that we have a conversation about what is the right balance, what are the right practices, what kind of nation do we want to be as a democracy at this point in history.

GREENE: Jennifer Granick is the director of Civil Liberties at the Stanford Center for Internet and Society. Jennifer, thanks so much for joining us.

GRANICK: Thank you.

GREENE: As we've said, we're listening to all different viewpoints about Edward Snowden's future. And tomorrow in the program, we'll hear from a former general counsel at the NSA.